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Clause 42

Education and Skills Bill – in a Public Bill Committee at 1:30 pm on 21st February 2008.

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Attendance panel

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I beg to move amendment No. 85, in clause 42, page 23, line 21, at end add—

‘(5) This section may not come into force before the Secretary of State has published a report setting out his estimate of the total annual cost of the establishment and operation of attendance panels.’.

Welcome back to our proceedings, Mr. Bercow. Clause 42 establishes attendance panels in each local authority that will hear appeals by young people who have been issued with attendance notices. It would be helpful if the Minister could expand on his intention towards the regulations in clause 42(3). In particular, subsection (3)(a) states that the panel chairman must not be a member of the local authority, which means, I assume, that he must not be a councillor for that authority. Can he or she, however, be an employee of the authority?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

To speed things up for the Committee, it is our intention that they should not be a council employee, and we will certainly clarify that point in regulation.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

That is extremely helpful. Will the Minister then also set out who else can serve on the panel? Can councillors fill all the positions on the panel, with the exception of the chair? Can council employees serve on the panel, subject to the Minister’s intention that they cannot chair it? If the answer is yes, how does that make the panel independent? The clause does not refer to attendance panels being independent, nor indeed do the famous explanatory notes, so it would be helpful if he could clarify that point.

The Government’s White Paper—I presume it is a White Paper—called, “Raising Expectations: from Policy to Legislation”, says at paragraph 4.33:

“If the young person wished to challenge the Attendance Notice it would be referred to an independent adjudication panel, which the local authority will set up”.

That document therefore refers to an independent panel. Furthermore, in the Minister’s letter to the hon. Member for Yeovil of 13 February, which was copied to all Committee members, there is an explicit reference in the third paragraph to an “independent attendance panel”. Clearly, the Government have applied “independent” to the panel in their policy, but it is not clear from the clause that, other than the chair, the panel will be independent of the local authority that first issued the notice. Clarification from the Minister would therefore be helpful.

Amendment No. 85 relates to the costs that will be incurred by the local authority in establishing and running the attendance panels. It says that clause 42

“may not come into force before the Secretary of State has published a report setting out his estimate of the total annual cost of the establishment and operation of attendance panels.”

I presume that such an estimate has already been prepared by the Government in introducing the Bill. The purpose of the amendment is principally to enable the Minister to share that information with the Committee.

Subsection (3)(b) gives the Secretary of State the power to make regulations to enable local authorities to pay allowances to members of an appeal panel. Could the Minister spell out how much these allowances will be, the conditions of payment, how many members each panel will have and the likely frequency of their meetings? The Local Government Association is obviously anxious about the provision and the possible result. It is only too aware of countless new duties imposed on local government by central Government without sufficient funding to match.

The LGA said in its briefing that local authorities

“will want to be involved in the drafting of regulations regarding the constitution of attendance panels to ensure that they are not overly bureaucratic, burdensome or costly.”

Will the Minister therefore spell out his thinking on the regulations so that the Committee can be reassured that attendance panels will not be overly bureaucratic, burdensome or costly? An estimate of the likely annual cost of operating these panels would also assist our deliberations.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I shall be extremely brief. We support the amendment, and we want to hear what the costs associated with the provision are likely to be, how they will be met by local authorities and whether there will be any additional funding relating to them. We also hope that there will be a clear answer from the Minister to the question implicit in the observation by the hon. Member for Bognor Regis and Littlehampton that local authorities want to be involved in the formulation of the regulations as to how the panels will operate and how they will be set up to make sure that the costs are reduced and that they are as effective as possible. I hope that the Minister can tell us how they will be involved.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

Will the Minister make a few comments about the implications for civil legal aid? Community legal centres provide education law advice and are funded by the legal aid fund. In those circumstances, it appears that there will be a need for more advice for young people who attend panels. I should be grateful to know what discussions the Minister has had with the Ministry of Justice and what he estimates will be the costs to the legal aid fund.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

The attendance panel is crucial to the effectiveness and fairness of the enforcement system. It is in place to ensure that attendance notices are issued fairly and that there has been sufficient opportunity and support. They provide an additional safeguard to ensure that no young person can enter the enforcement system inappropriately. We will ensure that it is effective in its purpose and that it is not too bureaucratic.

The hon. Member for Bognor Regis and Littlehampton asked about the panel’s composition and independence. We will want to consult fully about how it should be composed and how it should work, but I can set some of those things out in principle. Part of the consultation will undoubtedly involve the LGA and other local government interests to ensure that they have a proper opportunity to express their opinion. I remind the hon. Gentleman that we have committed to funding any costs to local government of carrying out that function in full.

As for composition, we envisage that the local authority will establish a pool of potential panel members by advertising. Panel members will receive fairly brief training on, for example, understanding the law and regulations in education and support systems, and on the expectations of them when they interact with young people who come before the panel. Those are examples—it is not an exhaustive list of the things in which they might be trained. Some people in the pool will be designated as chairs, and they will receive additional training. The pool will include some people with a background and expertise in education or the support professions—such people would have experience of the education system and would understand it, just as schools admissions appeal panels include at least one person who has experience in education and an acquaintance with educational conditions in the area or who is the parent of a registered pupil.

That is the requirement for the composition of admissions appeal panels, and we are seeking to replicate it. Indeed, much of the Government’s thinking on how the panels will be composed and resourced is informed by how school admissions appeal panels work. The panel will normally consist of three people: the independent chair, at least one person with an education or support background, and one other person. We will consult on whether there should be provision for larger panels in more complex cases. Clearly, some importance will be placed on ensuring that there is sufficient diversity among panel members, and that they reflect the area in which the authority is based.

There should be restrictions on who can become a panel member to enforce impartiality and independence—an issue about which the hon. Member for Bognor Regis and Littlehampton was concerned. We will clarify by regulation the fact that someone who is employed by the local authority or the educational institution in question should not serve on the panel. The same applies to any person about whom there are reasonable doubts as to their impartiality in relation to an authority or a school. Obviously, panellists would need to satisfy the training requirements, and they should not be involved in the decision that is being appealed.

In the end, costs will be determined by the consultation, which we have not yet carried out, and after we decide how the panel will be configured. To help the Committee, the Department has made a rough estimate of about £1.5 million, based on the costs of schools admissions appeal panels. We have not made that explicit in the impact assessment, but it has been included in the general costings. As I said, we have already committed both to funding additional burdens on local authorities and to consult fully with the LGA. We will certainly consult and take careful account of the likely costs of establishing the panels and their functions. We will make our cost assessment for local authorities, and we are committed to funding the measure. I hope that I have successfully answered the questions that were asked in the debate.

Mr. Heald rose—

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I have not successfully done so, because I have not responded to the interesting question on legal aid asked by the hon. Member for North-East Hertfordshire.

As I said, the panel should be informal—we will not expect legal representation in the panels. If the hon. Gentleman were to look at page 23 of the impact assessment, he would see some figures on the costs of prosecution. We do not think that the process will result in any more young people being entitled to legal aid than now.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

A certain number of parents and students go to a law centre to obtain legal advice, funded by the civil legal aid fund, on panels, exclusions and such things. The measure will create a larger cohort of such people. We are talking about panels for 16 to 18-year-olds who are do not comply with the measure, so there are bound to be more people who want educational advice from law centres. If only one case went to the panel, that would create one more such person. In those circumstances, I suggest that the Minister talk to the Ministry of Justice, because the civil legal aid fund is very pressed.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

We have had discussions with the Ministry of Justice about this and other clauses. I will think about whether I need to have a specific conversation with it about the point that the hon. Gentleman has made. As far as I am aware, that is not something that the Ministry of Justice has raised with us and therefore it is not of great concern. I accept the generosity with which he is advising me, and I accept his point in that spirit.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 1:45 pm, 21st February 2008

I am grateful to the Minister for giving way with such good grace. I am sorry if I have missed this point by not listening attentively enough, but of the Government’s estimates of the cost of the Bill, what is the cost for independent advocacy advice that might be necessary under the clause? What assumptions have the Government made about the cost to local authorities of giving access to independent advocacy?

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

The assumptions about cost that I set out when I gave a figure of £1.5 million were based on the schools admissions appeal panel. We will go on to debate an amendment about independent advocacy, and I will happily expand further on this issue at that point.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I think that the Minister will confirm that under clause 42(1), the regulations that will be issued will provide for independent advocacy for young people. Therefore, the cost of that will be covered in his estimates.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

As I said, we will come on to this issue. We are not saying that an authority must provide independent advocacy, but in guidance we will say that if someone has difficulty representing themselves it would be good practice for the authority to offer that facility to the young person. The atmosphere of the panels should be friendly and informal so as to engage young people. The more we end up using advocates, the greater the danger that the process will be formalised in such a way that young people will become disengaged from it.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

May I confirm that the Minister is saying that in the regulations that are at issue under clause 42(1), there will be no duty on local authorities to guarantee that independent advocacy will be available, even when young people need it for their interests to be represented to the panels? If that is the case, I am disappointed.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I am trying to find the amendment under which we will discuss independent advocacy in the panels. I am in your hands, Mr. Bercow, but I want to encourage the hon. Member for Bognor Regis and Littlehampton to withdraw the amendment and discuss the issue of independent advocacy when we reach the relevant amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I listened carefully to the Minister’s response to the amendment and to the exchange between him and the hon. Member for Yeovil. The point that he was trying to extract from the Minister is whether, within the £1.5 million, there is a cost for advocacy. Regardless of whether he wishes to encourage it, which he does not seem to, or whether local authorities will provide it in any case because they believe in helping social justice, advocacy is inevitable.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I did not say that I do not want to encourage advocacy, but that if the need is there for the young person, the local authority should be encouraged, in guidance, to provide it.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

That is a helpful revision to the impression that the Minister gave during the exchanges, but it will inevitably involve a cost. He was not able to respond adequately to the intervention of the hon. Member for Yeovil, so I suspect that the £1.5 million does not include the cost of such advocacy.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

There are two possible elements of cost: one is that a legal centre could give advice to the individual and help them to prepare a statement to the panel; and the other is a case where an advocate needed to attend. In both cases, however, the legal aid fund would pay, unless the Department for Education and Skills is now thinking of funding it.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

This legislation will therefore add yet another burden and drain on the fund, so my hon. Friend makes a good point. I listened carefully to the Minister, who made some good points about wanting to consult fully, which is welcome. He also said that the Local Government Association, which will have to implement that through its membership, will also be consulted on the regulations, and that the costs will be refunded to the local authorities, which will please local authorities and council tax payers. Of course, the costs always fall somewhere on the general public, so the taxpayer will be picking up the bill, and we want to ensure that we can be assured that the costs that the Minister has just divulged to the Committee will be accurate.

The Minister also gave some welcome indications about the membership of the panel, and it is pleasing that he has explicitly ruled out any employee of the local authority that issued the attendance notice being  on the panel, either as chairman or as an ordinary member. It is also welcome that the panel appears to be confined to three people, which will prevent it from becoming too expensive. However, I am not yet convinced that we have bottomed out the costs, and I suspect that the £1.5 million to which he has referred is solely the allowances of the panel’s attendees. Of course, there are other costs associated with operating such an attendance panel, such as secretarial support and office accommodation within the local authority. If I have done my maths correctly on the basis of the quantum assessment that the Minister uses, £1.5 million amongst 150 local authorities is only £10,000 per local authority, so I suspect that he has underestimated the cost of operating attendance panels.

For that reason, I think that the Bill should contain a statement that requires the Secretary of State to publish a report setting out the estimate of the total annual cost for the establishment and operation of attendance panels before the section comes into play. Given that we have until 2013 to do that, I do not think that it is an unreasonable burden for the report to be published so that it can be scrutinised by hon. Members. One of the key reasons why we have any power at all in the House is to assess spending, costs and tax-raising measures.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

As a last-gasp attempt to get the hon. Gentleman’s agreement, we are saying that we will have a consultation and that then there will then be regulation, which can, of course, be debated by the House. The report that he proposes in the amendment would be only a report. Indeed, we would want there to be a report to inform any debate that there might be in the House about any regulation, so that will effectively happen, whether or not the amendment is made.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. We cannot have an intervention on an intervention. I remind the Minister that he is only intervening.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I am grateful for that, Mr. Bercow. Given that the hon. Member for Bognor Regis and Littlehampton will effectively get costings in the fullness of time, I am pleading that it is not necessary for him to press the amendment.

Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire

It is true that there are regulations under clause 42(1), but they are under the negative procedure, so there is no guarantee that there would be a debate on them. I do not know whether my hon. Friend the Member for Bognor Regis and Littlehampton feels that the Minister might look at the concession of making that part of the affirmative procedure.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

My hon. Friend makes a valuable intervention. If the Minister were to promise to change that particular regulation and make the power into an affirmative resolution power, I would seek leave to withdraw the amendment. About 2,000 or 3,000 negative resolution statutory instruments go through the House every year and I suspect that few of those have a fully costed  report attached to them. Given that it is not mutually exclusive to have a regulation and a report setting out the Secretary of State’s estimate of the costs of those regulations, I see no reason on the basis of that intervention or the general debate we have had not to press the amendment to a Division at the appropriate time.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

The amendment deals with cost issues, but we are entitled to ask what is included in the cost estimate. As a consequence of probing that issue, rather disappointingly, we have found that advocacy services will not be a requirement for local authorities. I appreciate that the Minister’s natural instinct was to discuss advocacy under clause 43, when we will deal with other advocacy issues, but it is under clause 42(1) that the Government will provide guidance to local authorities in relation to duties under the provision.

I have had a representation from Barnado’s that covers not only some of the later clauses, but clause 42(1) and therefore the costing of it. In the context of a group that supports the Bill as a whole, Barnado’s makes it clear that it would like Ministers to provide clear assurances that statutory guidelines under clause 42(1) will require local authorities to make available independent advocacy services. When the Minister was challenged on that, he said that he would encourage local authorities to provide those services. Therefore, presumably his cost estimates are based on the assumption that only a proportion of local authorities will do so. If he is assuming that they will all do so, one wonders why the necessary provision cannot be put into regulations or the Bill.

Barnodo’s makes the point powerfully that it wants to ensure that independent advocacy services are available, particularly for young people who have learning, communication or sensory difficulties and in other specific circumstances. We can all imagine that young people who appear before such a panel under the circumstances that are envisaged would find the situation incredibly difficult, may have serious communication difficulties and may find it intimidating. Is it good enough to encourage local authorities to provide advocacy services in those circumstances? Given the Minister’s generosity in relation to the previous clause, when he said that he would reflect on some of the issues, will he reflect on the possibility of obliging local authorities to provide advocacy services for a prescribed number of conditions? If local authorities have financial constraints, it will not be good enough if, on the grounds of cost, some local authorities chose not to make advocacy services available to young people with the learning and communication difficulties to which Barnado’s refers. That seems to be a powerful point to which the Minister could usefully respond or on which he could reflect.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I will say two final things. We continue work on the estimates of the cost of attendance panels and at this stage we intend to have those ready in order to include more detailed estimates in the revised version of the impact assessment that will be published when the Bill is introduced in the other place.

Regulations will not provide for an entitlement to independent advocacy, but they will state that the young person should be invited and allowed to bring someone with them to assist with the process. However, as I have said, it is not a formal court hearing. I have  also said that guidance would indicate that it is good practice where there are specific needs. I shall consider whether in that guidance we should define things carefully, leaving some flexibility for the authorities, along the lines described by the hon. Member for Yeovil.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I welcome that response and make a brief intervention in order to reinforce the concession that we might get from the Minister on the matter. I am grateful to him for saying that he will at least consider placing a duty on local authorities relating to young people with particular learning and communication needs. That would satisfy some of my concerns about the clause.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 2:00 pm, 21st February 2008

Notwithstanding the concession on advocacy that we will come to in the following two clauses, I remain highly concerned about the panel’s cost implications. Given that the Minister has indicated that the estimates are still being worked up, I believe that we should see them before the legislation comes in to force. Therefore, I press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 21 Nimrod Review — Statement — Clause 42

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 42 ordered to stand part of the Bill.